Randy Jones v. State

• Court: Court of Appeals of Texas
• Decided: January 23, 2007
• Docket: 14-05-01189-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed January 23, 2006

Affirmed and Memorandum Opinion filed January 23, 2006.

In The

Fourteenth Court of Appeals

____________

NO. 14-05-01189-CR

RANDY JONES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 263rd District Court

Harris  County, Texas

Trial Court Cause No. 1000959

M E M O R A N D U M   O P I N I O N

Appellant, Randy Jones, appeals following his conviction for murder and sentence of twenty-five years in prison.  In his sole point of error, appellant contends that the trial court abused its discretion in denying his motion for mistrial.  We affirm.

I.  Background

A detailed summary of the facts underlying the convicted offense is unnecessary to dispose of appellant=s sole point of error.  On November 17, 2005, the jury foreperson presented to the trial court a verdict finding appellant guilty of murder.  When the jury was polled, juror number seven responded that it was not her verdict.  The trial court then ordered the jury to continue deliberations.  The jury returned a few hours later and reported a verdict finding appellant guilty of murder.  The jury was polled again, and each juror confirmed that it was his or her verdict, including juror number seven.  The jury then proceeded to the punishment phase where they assessed punishment as twenty-five years in prison.

II.  Analysis

In his sole point of error, appellant argues that the trial court erred in denying his motion for mistrial based on jury misconduct.  We review a trial court=s denial of a motion for mistrial under an abuse of discretion standard.  Wead v. State, 129 S.W.3d 126, 130 (Tex. Crim. App. 2004); Trevino v. State, 991 S.W.2d 849, 851 (Tex. Crim. App. 1999).  Mistrial is an extreme remedy for prejudicial events occurring during the trial process. Bauder v. State, 921 S.W.2d 696, 698 (Tex. Crim. App. 1996).  A mistrial is appropriate for only Ahighly prejudicial and incurable errors@ and may only be used to end trial proceedings when the error is so prejudicial that Aexpenditure of further time and expense would be wasteful and futile.@  Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000).  The determination of whether a given error necessitates a mistrial must be made by examining the particular facts of the case.  Id.

At some point subsequent to the judge=s returning the jury to the jury room for deliberations, juror number seven was brought before the trial court.  The trial court and juror number seven had the following exchange:

The Court:    Would you state your name for the record, please.

Juror:          Bernice Delavega.

The Court:    Yes, ma=am, what would you likeC

Juror:          Well, when I responded here, went back to the room, they didn=t even give me the benefit of the doubt to let them know what new things had popped into my head concerning the case.

The Court:    You mean since the timeC

Juror:          Since the time we left.

The Court:    CfromCexcuse me, ma=am.  Did you agree to the verdict in there?  

Juror:          I agreed to the verdict in there because they were all saying that it was 10 out of 2 [sic].  Okay.  And they were all trying to argue with us that the, >em, what was going onC   

The Court:    Okay.  So between the time that you agreed to the verdict in there and walked out here, had a seat, you changed you mind again.  Is that what you=re telling me?  

Juror:          Well because you asked meC

The Court:    I=m just asking youC

Juror:          Yes, sir.  Yes, sir.

The Court:    Cif thatC

Juror:          Yes, sir.

The Court:    Cit was unanimous back there at one time, but when you got out here you changed your mind? 

The Court:    Okay.  What is it that you wanted to say?

Juror:          Well, when we went back there and instead of them giving me the benefit of the doubt for me to explain what I wanted to clear up with them, they all just started being very aggressive, hostile. 

The Court:    So now it=s 11 against you, is that what you=re telling me?

Juror:          No, not so much that, the fact that they said it was personal.

The Court:    11 to 1 situation, is that what you=re talking about?

Juror:          I=m not talking about the case, the people.

The Court:    I=m talking about the vote, 11 to 1?

Juror:          Yes, sir.

The Court:    And, anyway, so they=ve become hostile towards you?

Juror:          Even before they give me opportunity to tell them why I went back in there, they were very hostile.  They took it very personal, they said this.  Why are y=all getting upset?  I mean, this isCthey said this is personal.  

That=s when I just told him that I was not going working with a jury who are taking this into a personal level.  We=re here as adults.  I did mention that to all of them in there.  And all of them were very upset.   

The Court:    Are you going to be able to go back there and work with them now, try to resolve the issue? 

If I call them out and talk to them about the fact that they need to work together to try to resolve these issues, is there possiblyC 

The Court:    Chope in your mind you might be able to reach a verdict in this case?  

The Court:    All right.  Why don=t you go back in there?

Following this discussion, the trial court allowed appellant=s trial counsel to question the bailiff.  The bailiff testified that at some point after the jury had returned for deliberations, he answered a buzzer summoning him to the jury room.  He stated that he had spoken with juror number seven and she had informed him that the other jurors were upset with her and that there was Ahostility.@  She also said that somebody threw something at her, but she Adidn=t say what it was, whether paper or anything.@  The trial court also allowed appellant=s trial counsel to make a brief statement on the record regarding her personal observations of the discussion between the bailiff and juror number seven.  Appellant=s trial counsel stated that she heard juror number seven say she had been Aattacked@ (although counsel admitted that it was unclear whether juror number seven meant verbally or otherwise) and that Asomebody threw something at me.@  On the basis of these facts, appellant moved for mistrial, which the judge denied.^[1]

The trial court is faced with a two-pronged inquiry when determining whether a mistrial due to jury misconduct is appropriate: (1) Was there misconduct (error)?  (2) Was the misconduct so prejudicial that expenditure of further time and expense would be wasteful and futile?  See Wood, 18 S.W.3d at 648.  We review the trial court=s denial of a mistrial under this inquiry for an abuse of discretion.  See Wead, 129 S.W.3d at 130; Trevino, 991 S.W.2d at 851.  To constitute an abuse of discretion, the trial court=s decision must fall outside the zone of reasonable disagreement.  Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 2000).

In this case, it is unclear whether there was juror misconduct.  It is clear, however, that if there were misconduct, it was not so prejudicial that expenditure of further time and expense would have been wasteful and futile.  Juror number seven=s statements to the trial court show that she was uncertain of appellant=s guilt and that she felt pressure from the other jurors to side with their reasoning.  However, when the judge inquired as to whether she thought the jury could Aresolve these issues@ and Areach a verdict in this case,@ she replied they could.  Furthermore, the jury did in fact reach a final verdict of guilt, and, when polled again, juror number seven responded that it was her verdict.^[2]  These facts support the trial court=s decision not to declare mistrial.  We cannot say that it was outside the zone of reasonable disagreement for the trial court to have determined that expenditure of further time and expense would not be wasteful or futile.  For these reasons, we hold that the trial court did not abuse its discretion in denying appellant=s motion for mistrial.  We overrule appellant=s sole point of error.

We affirm the trial court=s judgment.

/s/      Adele Hedges

Chief Justice

Judgment rendered and Memorandum Opinion filed January 23, 2006.

Panel consists of Chief Justice Hedges and Justices Fowler and Edelman.

Do Not Publish C Tex. R. App. P. 47.2(b).   

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^[1]  Both appellant and the State expend significant portions of their brief on the issue of Texas Rule of Evidence 606(b) as applied to the statements made by juror number seven, the bailiff, and appellant=s trial counsel.  Rule 606(b), however, is an evidentiary rule that details when a juror may testify regarding the validity of a verdict or indictment.  See Tex. R. Evid. 606(b).  The statements above clearly were not made with regard to the indictment, and they could not have been an inquiry into a verdict because no final verdict had been rendered.  Therefore, Rule 606(b) is irrelevant to the issues at hand.

^[2]  We note that we are not using this fact to retroactively justify the trial court=s ruling, but rather as an affirmation of the juror=s belief, expressed to the court at the time it made the ruling, that the jury could resolve the issues and reach a verdict.